The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint issued October 2, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for investigating and prosecuting complaints against persons holding licenses in the health professions and occupations, including chiropractic physicians. See § 456.073, Fla. Stat. The Board of Chiropractic Medicine ("Board") is the entity responsible for imposing penalties against chiropractic physicians for violations of Section 460.413(1), Florida Statutes. See § 460.413(2), Fla. Stat. At the times material to this proceeding, Dr. Falowski was a chiropractic physician licensed to practice chiropractic medicine in Florida, having been issued license number CH 5108. Dr. Falowski was first certified in Florida to practice chiropractic medicine in 1986. Dr. Falowski also is certified to administer propriety drugs. At the times material to this proceeding, Dr. Falowski did business as Rainbow Rehabilitation, and his address of record was 4201 North State Road 7, Lauderdale Lakes, Florida 33319. On or about August 25, 2997, Dr. Falowski submitted an application for acupuncture certification to the Department. He paid a fee and was certified to take the acupuncture certification examination. His application reflects that he completed 105 hours of acupuncture training at the University of Miami. Dr. Falowski took the acupuncture certification examination in November 1997, but he did not pass the examination. On or about April 15, 1998, Dr. Falowski submitted a second application for acupuncture certification to the Department. He paid a fee and was again certified to take the acupuncture certification examination. His application reflects that he completed acupuncture training at the University of Miami. Dr. Falowski took the acupuncture certification examination in May 1998 and attained a passing score. On or about July 7, 1998, the Department mailed an Examination Grade Report to Dr. Falowski, advising him that he had passed the chiropractic certification examination for acupuncture. A Request for Registration Form for the Board of Chiropractic Medicine was included with the Examination Grade Report, and the instructions stated that the form and a check or money order must be returned to the Department within 45 days. The form listed a $100.00 fee for the Chiropractic Acupuncture Certification. There is nothing in the records of the Department indicating that it received the Request for Registration Form or check in the amount of $100.00 from Dr. Falowski, nor do the records reflect that Dr. Falowski has been issued an acupuncture certification.4 On or about December 28, 2005, writing was observed on the window of the Rainbow Rehabilitation office which stated: WE DO PHYSICALS & BLOOD WORK LICENSED ACUPUNCTURE EKG No acupuncture license number was listed on the window. Dr. Falowski intended to perform acupuncture treatments for any member of the public who requested these treatments at Rainbow Rehabilitation.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order Finding that Francis J. Falowski, D.C., offered to practice acupuncture when he was not certified to do so, in violation of Section 460.413(1)(t); Imposing an administrative fine against Dr. Falowski in the amount of $5,000.00; and Placing Dr. Falowski on probation for a period of two years, under such terms and conditions as the Board deems appropriate. DONE AND ENTERED this 20th day of March, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2008.
Findings Of Fact L. R. Fleming is a chiropractic physician licensed by the Florida State Board of Chiropractic Examiners and holds License #1239. Dr. L. R. Fleming caused to be published in the Today Newspaper an advertisement, a copy of which was introduced into evidence as Petitioner's Exhibit 1. This advertisement read as follows: CHIROPRACTORS SEEK RESEARCH VOLUNTEERS The International Pain Control Institute in conjunction with the New York Chiropractic College is presently engaged in what is the most extensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignments and utilizes a screening process called Contour Analysis. Volunteers are being sought for screening. Contour Analysis enables taking a three- dimensional picture (called Moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient symptomatology, and levels of tenderness. An analysis of this type can reveal such things as normal and abnormal stress patterns, spinal curvature, muscle spasms, muscle imbalance, spinal distortions and scoliosis. There is no charge to participating volunteers, since the doctors are contributing their time, service, and facilities for the program. Final processing and evaluation will be done at the New York Chiropractic College. Anyone wishing to be a volunteer may telephone participating doctors directory for information or an appointment. MERRITT ISLAND TITUSVILLE MELBOURNE (doctor's (doctor's Dr. Lyle name deleted) name deleted) Fleming Phone 254-3343 The advertisement above was published in the Today Newspaper on or about April 1, 1978. Gladys Teate, of Melbourne, Florida, read this advertisement on or about April 1, 1978, and made an appointment with dr. Fleming for contour analysis on April 11, 1978. Gladys Teate kept the appointment on April 11, 1978, and had a contour analysis performed at Dr. Fleming's office. The process of contour analysis consisted of the taking of certain personal data together with symptomatology from Gladys Teate by one of the doctor's assistants. Thereafter, the doctor's assistant took a Moire photograph of Teate's back. Teate was then seen by Dr. Fleming, who performed an elementary examination of Teate's back and explained the Moire photograph to her. Teate had no recollection of the contour analysis, Dr. Fleming's examination, or any subsequent events to include any oral representations made by Dr. Fleming. However, records reflect that x-rays were taken of Teate at Dr. Fleming's office. Thereafter, a thorough chiropractic examination was performed by the doctor, who prepared a written diagnostic recommendation, a copy of which was introduced as Petitioner's Exhibit 3. Teate was unclear as to whether she saw Dr. Fleming on one or two (2) occasions; however, she was given a bill for $10 for a chiropractic examination and a bill for $45 for x-rays upon leaving Dr. Fleming's office. There was no charge for the contour analysis. No competent evidence of Dr. Fleming's indicating that further examination and diagnosis was free was presented. No evidence was introduced that the research program described in the advertisement was not a legitimate research program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida State Board of Chiropractic Examiners take no action against the license of Dr. L. R. Fleming, D.C. DONE AND ORDERED this 21st day of September 1979 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul W. Lambert, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 Louis V. Cianfrogna, Esquire 308 Julia Street Post Office Drawer 6310-G Titusville, Florida 32780 Board of Chiropractic Examiners 6501 Arlington Expressway Building B, Suite 202 Jacksonville, Florida 32211
Findings Of Fact Petitioner was a candidate for the May 1988, Chiropractic Physiotherapy certification examination. The exam consists of a written and an oral part, covering various areas of chiropractic physiotherapy. The written and oral parts of the exam are graded separately and a candidate must score 75 points on each part in order to pass and be certified in Physiotherapy. Petitioner had previously passed the written portion of the exam and was attempting only the oral portion of the physiotherapy exam. Petitioner claims he was incorrectly graded on the oral exam in the areas of manual, ultrasound and galvanic therapy. At the hearing Petitioner abandoned his claim that he was incorrectly graded on the galvanic therapy portion of the exam and that claim is not considered further for purposes of this recommended order. Petitioner obtained a score of 66.6 on the oral exam. The oral practice exam for physiotherapy certification is graded subjectively according to a candidate's response to questions asked by two grading chiropractors. The graders have been licensed to practice chiropractic for more than five years in Florida and have undergone some grade standardization training prior to examining the candidate for certification. Each grader assigns his or her point score independent of the other grader. A candidate's response therefore has two scores assigned by each grader. The points given by each grader are totalled. The two totals are then averaged together for the overall score on the exam. Some difference in the points assigned often occur. However, the difference between the two scores seldom exceeds 1 point and would therefore not be an unreasonable discrepancy when consideration is given to the effects of grading a subjective test and the effects of averaging the two point scores given by each grader. The grade range is from 1-4 points with one being the lowest score and four being the highest score. A score of 4 points is given when a candidate demonstrates superior or expert knowledge in the subject area tested. A score of 3 points is given when a candidate demonstrates minimal competency in the subject area tested. A score of 2 points is given when the candidate's answer is wrong but not dangerous to the patient. A score of 1 point is given when a candidate's response is wrong and dangerous to the patient. Dr. Brennan scored a 1.5 and 2.5 on the manual portion of the exam and a 1.5 and 2.5 on the ultrasound portion of the exam. In both instances Petitioner's answers to the questions covering the manual and ultrasound areas of the exam were wrong. Therefore the scores given by each grader could not exceed 2.9 points. Even if the highest allowable score is awarded for Petitioner's responses the additional points are not sufficient to raise Petitioner's score to a 75. Based on the above facts Petitioner has failed to present sufficient evidence to establish that he should be certified in Chiropractic Physiotherapy. More importantly, however, Petitioner's answer to the ultrasound portion of the exam was wrong and dangerous to the patient. Petitioner was clearly confused by the manner in which the question was asked by the examiner. However, the confusion did not exclude the candidate's ability or opportunity to give the correct answer in order to take the safest course of therapy to the patient. To Petitioner's credit he did demonstrate competency in his responses to the other question pertaining to the ultrasound area. It was the application of that knowledge that Petitioner failed to demonstrate. The explanations given by each grader, justifying a failing score given to the candidate, reflect the above. Therefore, neither of the graders scores on the ultrasound portion of the exam can be said to be incorrect and should remain the same. Petitioner failed to demonstrate that the two grader's scores on the manual and ultrasound portion of the exam were devoid of logic or reason for its respective assignment. Petitioner, therefore, failed to demonstrate that he was incorrectly graded on the oral exam and should be certified in Chiropractic Physiotherapy.
Recommendation Based on the foregoing Findings of Fact acid Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that he was incorrectly graded on the Chiropractic Physiotherapy exam and should be certified in the area of Chiropractic Physiotherapy. DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. APPENDIX The facts contained in paragraphs 1, 2, 3 and 4 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 5 and 6 of Respondent's Proposed Findings of Facts are subordinate. COPIES FURNISHED: Brian P. Brennan 5828 Rawson Lan Pensacola, Florida 32503 E. Harper Field General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Kenneth Easley Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Pat Gilford Executive Director 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729
The Issue Whether Petitioner is entitled to additional credit for the answer he gave in response to Question 21 on the physical diagnosis portion of the November 1999 chiropractic licensure examination.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner took the chiropractic licensure examination administered in November of 1999. The practical examination consisted of three parts: "technique," "physical diagnosis," and "x-ray interpretation." The minimum passing score for each part was 75. Petitioner passed the "technique" and "x-ray interpretation" portions of the examination; however, he failed the "physical diagnosis" portion of the examination (PD Test), with a score of 68. On this portion of the examination, candidates demonstrated their knowledge of "physical diagnosis" by responding to test questions, in the presence of two examiners, verbally and/or, where appropriate, by demonstrating on a "patient." Their responses were independently evaluated and graded by the two examiners. A candidate's final score was the average of the two examiners' scores. Prior to the administration of the PD Test, all examiners were provided with instructions regarding their role in the examination process and the standards they should follow in grading the candidates' performance. Candidates were provided with a Candidate Information Booklet (CIB) in advance of the licensure examination. Among other things, the CIB listed, by category ("acupuncture," "physical diagnosis," "technique," and "x-ray") reference materials that could "be used to prepare for the examination." The list was preceded by the following advisement: The list is not to be considered all- inclusive. Thus, other comparable texts may be used to prepare for the examination. Under the category of "x-ray" the following "references" were listed: Eisenburg, Gastrointestinal Radiology- A Pattern Approach, Hagerstown, MD: Lippencott, Second Edition, 1989. Paul & Juhl, Essentials of Radiologic Imaging, Hagerstown, MD, Lippencott, Sixth edition, 1993. Taveras & Ferrucci, Radiology: Diagnosis- Imaging-Intervention, Hagerstown, MD: Lippencott, 1986. Five-volume set, loose- leaf renewed in July 1994. Yocum, T. R., & Rowe, L. J., Essentials of Skeletal Radiology, Baltimore: Williams & Wilkins, First Edition 1986. Not on the list under "x-ray" or under any other category was Dr. Robert Percuoco's Radiographic Positioning for the Chiropractor (Dr. Percuoco's Publication), the text book used by Dr. Percuoco in the radiology classes he teaches at the Palmer College of Chiropractic in Davenport, Iowa (Palmer). Palmer was the nation's first college of chiropractic, and is accredited by the Council of Chiropractic Education. Petitioner graduated from Palmer and was taught radiology by Dr. Percuoco. Question 21 on the PD Test was an eight-point "diagnostic imaging" question (with no provision for partial credit) that asked the candidates to "demonstrate a Lateral Thoracic view." Among the six items the candidates had to address in answering the question was the central ray. Page 54 of the Dr. Percuoco's Publication describes what, according to the author, needs to be done to obtain a view of the lateral thoracic spine. It provides, in pertinent part, as follows (Dr. Percuoco's Approach): Center the central ray to the film. The vertical portion of the central ray should pass posterior to the head of the humeri. In responding to Question 21 on the PD Test, Petitioner relied on the foregoing excerpt from Dr. Percuoco's Publication. He told the examiners that the central ray should be centered to the film and that the vertical portion of the central ray should pass one inch posterior to the head of the humerus. The two examiners evaluating his performance both gave Petitioner an "A" (or no points) for his response to Question 21. In so doing, they acted reasonably and in accordance with the grading instructions they had received prior to the administration of the PD Test. Dr. Percuoco's Approach (upon which Petitioner relied) is not generally accepted in the chiropractic community. A reasonably prudent chiropractor, in taking an x-ray of the lateral thoracic spine, would do what was necessary to have the central ray pass, not "posterior to the head of the humeri," but "approximately 3 inches inferior to [the] sternal angle," as Drs. Yocum and Rowe, two of the most respected radiologists in the country today, instruct in their text, Essentials of Skeletal Radiology, which was one of the reference materials listed in the CIB (Dr. Yocum's and Dr. Rowe's Approach). Dr. Yocum's and Dr. Rowe's Approach yields a more exact and complete view of the lateral thoracic spine than does Dr. Percuoco's Approach. Because Petitioner failed to incorporate Dr. Yocum's and Dr. Rowe's Approach in his response to Question 21, the examiners were justified in determining that Petitioner did not answer all six parts of the question correctly and that he therefore should be awarded an "A" (or no points) for his response.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the physical diagnosis portion of the November 1999 chiropractic licensure examination. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2000.
Findings Of Fact At all relevant times, the Respondent Joseph O. Smith, was licensed as a chiropractic physician by the Florida Board of Chiropractic. On or about March 3, 1982, an investigator for the Department of Professional Regulation, William Pawley, went to the chiropractic office of the Respondent Smith and took into his possession five (5) pieces of literature, each containing the name of the Respondent Smith, from the public waiting area of the office. The literature consisted of the following: A brochure entitled "Total Health Care Center", on which is printed the name Dr. Joseph O. Smith with no designation of the Center as a chiropractic or related facility or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 1) A flyer with the Respondent Smith's and Total Health Care Center's address captioned across the top, with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 2) A brochure entitled "What to Do in Case of an Automobile Accident" which has the Respondent's and Total Health Care Center's address and telephone number on the cover with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 3) A wallet-size card with the Republican Party's elephant symbol, the slogan "The Republican Party of Florida" and the Respondent's name without a designation of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 4) A booklet entitled "Foundation of Man" authored by the Respondent Smith which designates him as a chiropractic physician. (Petitioner's Exhibit No. 5) The "Total Health Care Center" is located at 349 Southwest 79th Avenue, Fort Lauderdale, Florida, and is the chiropractic office of the Respondent Smith. The sign outside the office which is visible from the street clearly designates the office as being that of a chiropractic physician. The "Total Health Care Center" is primarily a chiropractic office which also offers related health care and medical services when appropriate. During the past three years, Dr. R. George Manieri, D.O., has examined patients at the Center and provided medical services including routine check-ups, vaginal examinations, breast examinations and pap smears. He also treated the Respondent's patients on a referral or part-time basis, by prescribing medication for birth control and other medical reasons. According to Dr. Manieri, the Respondent's position at the Center was both as a director and chiropractor since both medical and chiropractic services were available. Dr. Jeffrey Goldenberg, a licensed medical doctor specializing in obstetrics and gynecology, saw the Respondent's patients at the Center for birth control exams, breast checks and other medical reasons. The Respondent referred patients to Dr. Goldenberg, who saw patients either in the Center or at his private office. The Respondent Smith treated patients at the Center only for chiropractic problems. The Respondent Smith acted as the Director of the Center and has employed both chiropractic and medical physicians as part of his total or holistic philosophy of health care. Consumers who arrive at the Center are immediately placed on notice that the Center is essentially a chiropractic office by signs both outside and inside the establishment. The booklets, which were obtained by the Department from inside the Center and which failed to designate the Respondent or the Center by use of the term "D.C. or Chiropractic" (Petitioner's Exhibit Nos. 1, 2 & 3), were provided for general informational purposes and were not intended as chiropractic advertisements. Petitioner's Exhibits 1 and 3 are neither false nor misleading and contain general medical information concerning breast cancer, arthritis, burns, mouth-to-mouth resuscitation, heart attacks, CPR and aid for automobile accident victims. These pamphlets (Petitioner's Exhibit Nos. 1 & 3) were distributed for informational purposes only to patients once inside the office, who were already on notice that they were in the office of a chiropractor. When the Respondent Smith advertised himself as a chiropractor, he used the term chiropractor or D.C. after his name. However, when he advertised the Center, the Respondent would indicate that it provided both chiropractic and medical services as indicated by Petitioner's Exhibit No. 2. In addition to running the Center and practicing chiropractic, the Respondent also ran for the Republican nomination for Governor of Florida. His campaign office was located at the Center and, as demonstrated by Petitioner's Exhibit No. 4, at least one campaign document was kept at the Center which did not designate him as a chiropractic physician. Dr. Barry Adler, a licensed chiropractor and Secretary of Broward County Chiropractic Society and Co-Chairman of the Society's Ethics Committee, testified concerning the community standard in Broward County regarding the designation of chiropractors for advertising purposes. In Broward County, it is common for chiropractors to not use the term chiropractor or D.C. in their names when they are not advertising chiropractic services. For example, business cards and bank accounts of chiropractors are maintained without the designation, since such items are not generally considered as advertisements. Similarly, the Journal of the Florida Chiropractic Association, Inc., and Directors of the Broward County Chiropractic Society, lists their directors as "Drs." without the specific designation of chiropractor or D.C. following each name. Patients who visited the Total Health Care Center would not be misled by the lack of the designation "D.C." or "chiropractor" on Petitioner's Exhibit Nos. 1, 2 and 3, which were offered to prospective patients once inside the Center. The information both outside and inside the Center made it clear that the Respondent provided primarily chiropractic care while the Center offered both chiropractic and medical services. No evidence was presented on Count I of the Administrative Complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Joseph O. Smith be dismissed. DONE and ORDERED this 2nd day of September, 1983, Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1983.
